Aldridge v. Birney , 23 Ky. 344 ( 1828 )

Judge Mills,

delivered the Opinion of the Court

On the 17th February, 1800, John Aldridge executed to Miller Wood the following instrument of writing:

“I promise to pay Miller Wood, eleven pounds one shilling and sixpence, in either merchandise or whiskey at 3s. 9d. per gallon, on or before the first day of July next, for value received. Witness my hand and seal the 17th Feb. 1800.”

(Signed) John Jlldridgc, [seal.]

This writing Wood assigned to a certain Willick, who assigned it to Elisha Freeman, who assigned it to James Aldridge, who assigned it to Stephen Pirkins, who assigned it to James Birney, who brought bis action at law thereon, and recovered judgment against the obligor.

To be relieved against this judgment, John Aldridge filed this bill in equity, shewing, that on the same day of the execution of his bond to Wood, Wood executed his obligation to him (Aldridge) to the following effect:

“Under the penalty of one hundred pounds, Í oblige myself, my heirs, &c. to do or cause to be done, the following work, to the house in Lancaster, on lot No. 10, to-wit: hue and put-up one other set of logs, and to be of white oak, and finish the roof in a good and workmanlike manner. The logs above to be hued three sides. Also to furnish fivehundred and fifty feet of good sound flooring plank, and do fifty dollars worth of mason work on said house, should the said mason work that is necessary for said house not amount to fifty dollars, said Wood is to pay the balance in cattle, and if more, said Aldridge is to pay it in cattle, said carpenters work shall be done by the last of March. Witness my hand and seal, this 17th of February, 1800.

Birney’s answer. Decree of the circuit judge. Where oile obligation forms the consideration ' of anolher, and one of the parties, without performing, removes from the state, having assigned off the obligation lo him, the other party maybe relieved in equily against a judgment recovered by the assignee.

(Signed.) Miller Wood."

He charges, this writing was given in consideration of the first, or that one constituted the consideration of the other, so far as the first extends; and that Wood violated his covenant in every particular, and performed no part, and even sold part of the materials belonging to Aldridge at the building, before his departure from the state, and that he had, departed and left no remedy to Aldridge to recover for his breaches and failures; the amount of which he claims as a discount against the note held by Birney.

Birney answered declaring his ignorance of the equity set up and requiring proof. Wood never answered, but order of publication was made against him.

The court below dismissed the bill of Aldridge, with costs and damages.

It appears in proof, that Aldridge had bought lot No. 10, of Wood, and Wood had stipulated to do the work contained in his bond to Aldridge, on the lot; and that he had wholly failed to do it before he departed from the country. It is evident, from the date of the two writings, that one did form part of the consideration of the other; that is, that the writing given by Aldridge did form a part of the consideration of that giveu by Wood to Aldridge.

Under these circumstances, We do not doubt the failure of Wood to perform his covenant, did give to Aldridge an equity which would follow his own obligation into the hands of Birney. It is true that the claims of Aldridge, or his obligation upon Wood, for the breaches thereof, are of a legal character, and such as form a cause of action peculiarly proper for a court of law. But Wood, by leaving the country, put any legal remedy out of the power- of Aldridge; and as one instrument formed the consideration of the other, it was competent for the chancellor to ascertain by a jury, the quantuid of damages, or the value of the defalcation of Wood. Baylor vs. Morrison, 2 Bibb, 103.

In the bill in such case, it is not necessary to make the original obligee against iyhom the complain•ant sets up the obligation he relies ■on for set-off, a party; but 'you may proceed without him, as in case the set-off had been pleaded at law.

•But a difficulty here, occurs with regard to parties to the contest. Wood is named as a-defendant •in the bill, and an order of publication was made against him, and there is a formal certificate by tlic printer, that the order was inserted for two months; but it is evident from said certificate, that part of those weekly insertions was after the day of appearance named in the order. The publication was commenced too late, to have two months left before the apperance day, and the editor continued the publication afterwards to complete the requisite length of time. Of course Wood could not be treated as a party before the court at the bearing.. The question then arises, was he a necessary party? If he was, then no decree on the merits ought to have been rendered. The chancellor ought to have dismissed the bill for the want of proper parties, without prejudice, or to have directed the proper parties to be made in a reasonable time, and to direct the bill to be dismissed, because the new party or parties were not made or brought in, at the end of that period. On the contrary, if Wood was not a necessary party, then the chancellor might have decreed upon the merits, as he has done, without him.

Wood was the assignor of the note or obligation held byBirney, and as that assignment passed the legal title of the note, it was not necessary that Wood should be a party, for the mere purpose of contesting that note according to previous decisions. The same principle, we conceive, dispenses with Wood as a necessary party, notwithstanding there is still another obligation upon him, held by Aldridge, to be settled in this action. If the note held by Aldridge, was for a liquidated demand, and could have been pleaded as a set off at law, Aldridge could have made that plea in the common law action; and allowing him to set up and liquidate the amount, and claim it as a discount against Birney in chancery, without making Wood a party, is permitting him to do no more, than he could be allowed to do at. common law. Wood, therefore, is not a necessary-party; and although there was an attempt to publish-against him, yet, as that publication was not properly made, we cannot suppose the complainant, Aldridge, in a worse situation, with his defective publication, than he would have been had he never-named Wood as a party in his bill'. It was proper, therefore, that the chancellor should decree upon the merits, disregarding Wood, as no party.

Date and subscribing witnesses being the same, are sufficient, without any other.evidence, to prove one obligation was the condition of the other. Assessment of damages in chancery. Decree and mandate,

We cannot douht, that one of these notes is the consideration for the other. They were of the same date, and witnessed by the same witness, and unless something on their face forbids the conclusion or some other proof is adduced to the contrary, the presumption is, that one forms the consideration of the other.

The court below ought, therefore; to have given to Aldridge the relief desired. A jury ought to be empannelled to ascertain the real injury or damages sustained by Aldridge, and on account of the failure of Wood to comply with this contract; these damages ought to be set off and discounted against the judgment held by Birney, even to the full amount, if they shall be so much when ascertained. If there be more, as Wood is no party, no decree for. the over-plus can be rendered.

The decree must be reversed with costs, and the cause be- remanded, with directions for such proceedings to be had and decree to be rendered, as-shall conform to this opinion and the rules of equity-